Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00018138-001

16/03/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00018138-002

16/03/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00018138-003

16/03/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 20(1) of the Industrial Relations (Amendment) Act, 2015

CA-00018138-004

16/03/2018

The Complainant alleges that he was employed by the Respondent as a Plasterer from 17th January 2017 to 1st December 2017. He was paid €180 per day.

He has claimed that he was an employee of this company and that he did not get a written contract of employment, did not get holidays and Public Holidays. He also has claimed that he should have been encompassed by the Sectoral Employment Order (Construction Sector) S.I. 455/2017did not get

The case today concerns the complainant a Plasterer who was employed by the Respondent on a continuous basis for nearly one year. He carried out the instructions of the respondent on various sites throughout the employment. The claimant was designated as a self-employed Plasterer for the purposes of paying tax to the State as required however the real and true relationship of the employment was that of employer/employee. This raises a preliminary issue for the commission to decide regarding as to whether or not the claimant was employed on a “contract of service” or a “contract for services”. It is believed that the claimant should have been treated as an employee on a contract of service.

Preliminary Issue.

Precarious forms of employment have increased in years and this is very evident in the construction sector in the form of self-employment or false self-employment. The government in January this year released a report titled “The use of intermediary-type structures and self-employment arrangements: Implications for Social Insurance and Tax Revenues January 2018”. The purpose of this report is to identify and estimate any potential loss of tax and Pay Related Social Insurance (PRSI) resulting from intermediate-type structures and certain self-employment arrangements. Where the use of self-employment is discovered, the report shows in monetary terms the loss to the state. A Construction sub group was formed to examine issues in the sector. The report received submissions from interested parties and one issue evident was that. “in many cases, trades people do not have a choice with regard to whether they are engaged as an employee or self-employed worker and are being forced to take up self-employment rather than being engaged as an employee. The plastering and block-laying trades are specifically highlighted in this regard”[1].

To establish as to whether the true employment relationship is that of a “contract of service” or a “contract for services” one must look at the facts of the day to day relationship that existed during the employment. The category a worker falls into depends on what they actually do, the way they do it and the terms and conditions under which they are engaged, whether written, verbal or implied. It is not simply a matter of a principal contractor or a subcontractor calling the engagement 'employment' or 'self-employment' to suit themselves.[2] The Superior Courts have identified a number of tests that can be used to identify the true nature of the employment. The in-business test, the control test, the integration test are just some titles put on the tests that can go to distinguish the employment relationship however no one test can be applied as to determine the relationship as the relationship needs to be looked at as a whole.

Market Investigations Ltd v Minister for Social Security [1969] 2 QB 173 applied the in-business test importing it from United States v Silke (1946) 331 US 704. The case involved market researchers whereby it was argued by the company that the workers could not be considered as employees due to the lack of direct control on assigned tasks and that they were not integrated into the business.

Cooke J rejected the suggestion that this was the fundamental characteristic of an employee:

“[T]he fundamental test to be applied is this: Is the person who has engaged himself to perform these services performing them as a person in business on his own account? If the answer to that question is yes, then the contract is a contract for services. If the answer is no, then the contract is a contract of service. No exhaustive list has been compiled and perhaps no exhaustive list can be compiled of the considerations which are relevant in determining that question, nor can strict rules be laid down as to the relative weight which the various considerations should carry in particular cases. The most that can be said is that control will no doubt always have to be considered, although it can no longer be regarded as the sole determining factor; and that factors which may be of importance are such matters as whether the man performing the services provides his own equipment, whether he hires his own helpers, what degree of financial risk he takes, what degree of responsibility for investment and management he has, and whether and how far he has an opportunity of profiting from sound management in the performance of his task." There have been a number of Superior Court cases which have given direction which goes to establish a worker’s employment status.”

Background

The claimant after phoning the respondent in late January 2017 was offered work on a continuous basis. The claimant informed the respondent that he sought work and enquired if the respondent had much work on. The respondent replied that he had and that the claimant was to meet him in Maynooth the next morning. The claimant was asked what he expected as a day’s pay and he replied €180.00 per day. The respondent agreed and informed him of the hours of work and where he was to start. He was also informed of what amount of work he would be required to achieve per day in order to achieve a day’s pay of €180.00. The respondent required the claimant to provide him with his address, PPS no and his IBAN number. The respondent informed the complainant that without the information he would not be paid. His hours of work where from 8.00am to 4.30pm. However, the claimant started at 7.30am every morning and finished between five and half five every evening. Both the claimant and respondent worked together and the claimant was instructed continuously by the respondent. The claimant was informed that he would need to have complete two gauges of skimming in a day to cover his wages. If the two gauges of skimming where not completed in one day the respondent would dock the claimant wages and only pay him a half days wage.

A gauge of plaster is an amount of work done in a period of time. That is to say, if a plasterer starts work at 7.30 in the morning and throws on two rooms and completes them that is referred to as a gauge. He then starts his second gauge and this could be at 10.30/11.00 depending on the setting time of the plaster. The claimant wrote an invoice which indicated how much wages were owed, if he did not write the invoice he would not get paid. He received confirmation from the revenue commissioners that a particular amount of money was allocated to the specific contract, this being directed by the respondent. This clearly shows that the predetermined daily rate as specified by the respondent was €180 per day.

The claimant worked with the respondent for just under 12 months and in that time, he worked to the respondent’s instructions at all times, that is to say, where he was to work, when he was to work, on what days he was to work, the hours of work and with whom he was to work with. For the most part he worked alongside the respondent. The respondent would also arrange with the claimant to meet him at a site on a morning for work. The respondent would set out what had to be done on the job that day and leave the claimant to the work.

An arrangement was made whereby the claimant was allowed to leave early on a Friday so to allow him travel home to his family for the weekend. The conditions attached were that the claimant would have to complete three gauges of plaster on one of the days during the week so to allow him leave early on Friday for the trip home. If the third gauge was not completed during the week and if the claimant left early on a Friday, he would be docked a half day the following week. This is evident on the 11th August confirmation form. As you can see from the contract confirmation notices received by the claimant, he worked at a number of different sites as identified by the respondent. On a number of occasions, the respondent instructed the claimant to write an invoice relating to a location at variance to the location to where the work related. The respondent is a self-employed person acting in business on his own account. He displays himself to the world as such by his advertisements on the World Wide Web. He presents himself as X Plastering.

Facts:

The claimant was employed as a plasterer from January to December 2017.

He was paid a pre-determined wage which as a daily rate of pay.

He worked set hours.

He could not introduce sound management structures which would allow him profit from his labour as the respondent instructed him as to how where and when he was to work

He carried out his work personally

He did not hire any individuals to carry out his work for him.

He was fully integrated into the respondents’ business. He never presented to a main contractor as being in business on his own account.

He was not exposed to any financial risk.

Finally, on the 27th July 2017 the respondent issued correspondence relating to the claimant. It reads

“X is being employed by me. For his employment to continue, I will need him to have transport to carry materials and tools to various projects we have ongoing around the city. If you need any further information, please don’t hesitate to contact me on the number below.” The correspondence is signed by the respondent.

Case Law.

The case law in Ireland surrounding the identification of a contract of employment has dealt with the actual employment relationship of each case separately as each employment differs. There are number of tests which have been established by the courts which go to prove employment status. The control test, the integration test, the in-business test have all been established as ways of identifying employment status, however no one test can be used to outline or give effect to the employment relationship. It is a matter of reviewing the employment relationship or the day to day relationship that existed and consider all the facts before deciding. This can also include any written documents presented as contracts of employment or otherwise.

In Ireland the leading authority is Henry Denny & Sons (Ireland) Ltd v Minister for Social Welfare [1998] 1 IR 34 The case involved a supermarket demonstrator who worked under a yearly contract. The Company argued that there were no employees or full-time positions available and that Mrs M. was employed on the basis of a “contract for services”. The employment was governed by written terms in which it set out Mrs Mahon as self-employed, she was to be paid by the day and if she was unable to attend at work she could substitute that work to another worker who was approved by the company to do her work. The company provided the necessary uniforms and equipment to enable her carry out her duties as prescribed within her contract. Keane J, in a judgment with which Hamilton CJ and Murphy J agreed, said (at 50): “ … while each case must be determined in the light of its particular facts and circumstances, in general a person will be regarded as providing his or her services under a contract of employment and not as an independent contractor where he or she is performing those services for another person and not for himself or herself. The degree of control exercised over how the work is to be performed although a factor to be taken into account is not decisive. The inference that the person is engaged in business, in his or her own account, can be more readily drawn where he or she provides the necessary premises or equipment or some other form of investment, where he or she employs others to assist in the business and where the profit which he or she derives from the business is dependent on the efficiency with which it is conducted by him or her.”

Having set out the principals applying in the case the Court then looked at the circumstances in which Mrs. Mahon worked. The employment relationship was studied and the Court said that she;

"was provided by the appellant with the clothing and equipment necessary for the demonstration and made no contribution, financial or otherwise, of her own and that the remuneration she earned was solely dependent on her providing the demonstrations at the times and in the places nominated by the appellant. The amount of money she earned was determined exclusively by the extent to which her services were availed of by the appellant: she was not in a position by better management and employment of resources to ensure for herself a higher profit from her activities. She did not as a matter of routine engage other people to assist her in the work: where she was unable to do work herself she had to arrange for it to be done by someone else but the person in question had to be approved by the appellant.”

In Ó Coindealbháin v Mooney [1990] 1 IR 422 the claimant, a manager in an employment office claimed to be an employee of the Department. He had provided the offices for the employment centre as well as the staff required to carry out its administrative function. He was paid according to the number of claimants registered with him and was allowed to hire staff. Blayney J in the High Court was satisfied that the conditions of self-employment were present placing particular emphasis on the fact, that: “his profit is the amount by which his remuneration exceeds his expenses; the lower he can keep his expenses the greater his profit.”

The above case shows clearly that the complainant was in business on his own account. He could profit from reducing his costs. How he reduced his costs was a matter for himself to decide. He was in a position to hire his own staff. The premises from where he worked were rented by him. All the elements of self-employment were present in the above case which is counter to the instant case.

Considering the Denny case and the instant case, the only difference between both was that the respondent in this case did not provide clothing as it wasn’t necessary to do so. The claimant as would be normal supplied his own overalls as is custom and practice within the craft of plastering for centuries. The amount of money he could earn was based on a fixed figure imposed by the respondent, that being €180 per day for an eight hour day. The respondent at all times remained in charge of when where and how the work was to be done. He directed his workers as to what times the work was to be carried out and on what sites. The claimant was acting for the respondent at all times and never acted for himself. He never presented as a person in business.

Mutuality of obligation.

Another factor or test to consider when establishing the employment status of workers is whether or not the irreducible minimum of “mutuality of obligation” existed. A contract of Employment will only be recognised when the party offering the work commits to provide the work when it becomes available and the worker further agrees to commit to undertake the work when it is offered, the so called irreducible minimum of “mutuality of obligation” requirement. The principle is traced to Nethermere (St Neots) Ltd v Gardiner [1984] ICR 612, where clothing workers argued that a contract of employment existed. On appeal to the Court of Appeal the Court accepted the argument that discretion to decline to work, or discretion on the part of the employer not to provide work, was inconsistent with the existence of a contract of employment.

The irreducible minimum of Mutuality of Obligation was in existent in the instant case where, there was an obligation upon the respondent to offer work and a receptacle obligation on the claimant to carry out that work. The claimant was fully integrated into the respondent’s business.

Finally, we would refer to Firthglow Ltd (trading as Protectacoat) v Szilagyi [2009] IRLR 365   where a construction worker was engaged by the respondent to carry out work on buildings clients of Protectacoat. The company arranged for a partnership agreement with the claimant. The Court found in favour of the Claimant in that a contract of service was the true employment relationship. Smith LJ put the matter in context when she said: “Protectacoat wanted the ha'penny of treating their installers as employees when it came to attendance and control and also wanted the bun of not having to give them the rights they would enjoy as employees ...”

It would appear that in the instant case the above quote was the intended position of the respondent.

Industrial Relations (Amendment) Act 2015

The claimant is entitled to the provisions of S.I. 455 of 2017 as he is a craft worker to whom the order applies working in the construction sector. Sectoral Employment Orders are governed by Chapter 3 of the Industrial Relations (Amendment) Act 2015 where by workers of a particular class type or group as specified in an Order are entitled to the provisions of an order laid before the houses of the Oireachtas and passed by same.

The Act provides to make further and better provision for promoting harmonious relations between workers and employers and, in particular, to make provision for a system of registered employment agreements and sectoral employment orders; to amend and extend the Industrial Relations (Amendment) Act 2001; to amend and extend the Industrial Relations (Miscellaneous Provisions) Act 2004; to provide for certain interim relief for certain persons in respect of actions taken by them in relation to investigations of trade disputes and, for that purpose, to amend the Unfair Dismissals Act 1977; to amend the Workplace Relations Act 2015 and certain other enactments; and to provide for related matters. The act refers to workers and as such the SEO complies with that requirement. In accordance with section 5 (Definitions) it refers to the definition of a worker, as having the same meaning as Part III of the Act of 1990.   23.—(1) In the Industrial Relations Acts, 1946 to 1976, and this Part, “worker” means any person aged 15 years or more who has entered into or works under a contract with an employer, whether the contract be for manual labour, clerical work or otherwise, whether it be expressed or implied, oral or in writing, and whether it be a contract of service or of apprenticeship or a contract personally to execute any work or labour including, in particular, a psychiatric nurse employed by a health board and any person designated for the time being under subsection (3) but does not include

The section continues to outline the categories of workers to whom the section does not apply to, Plasterers are not included in section 23 nor are craft workers. “On a true construction of the said Section 23 a natural person providing services personally to another on a contract for service is a worker[3]”. Chapter three section 14 allows for applicants to request the Labour Court to examine the terms and conditions relating to the remuneration and any sick pay scheme or pension scheme, of the workers of the particular class, type or group in the economic sector in respect of which the request is expressed to apply. The Court may examine if the request is made by a trade union of workers or employers who are substantially represented of the class type or group of workers to whom the order applies or they are substantially represented of the employers in the sector to which the order applies.

In accordance with section 15(b) of the Act it requires that the order applies to “all workers of the particular class, type or group and their employers in the economic sector in respect of which the request is expressed to apply”,

Section 15(c) requires that, “it is a normal and desirable practice, or that it is expedient, to have separate terms and conditions relating to remuneration, sick pay schemes or pension schemes in respect of workersof the particular class, type or group in the economic sector in respect of which the request is expressed to apply,

Section 15 also sets out the requirements for those who wish to be heard on any application to the court for a Sectoral Employment order for an economic sector.

Section 16 then sets out the requirements necessary for making a recommendation the Minister and it should have regard to a number of matters

Section 16(2)

(a)    the potential impact on levels of employment and unemployment in the identified economic sector concerned;

(b)    the terms of any relevant national agreement relating to pay and conditions for the time being in existence;

(c)     the potential impact on competitiveness in the economic sector concerned;

(d)    the general level of remuneration in other economic sectors in which workers of the same class, type or group are employed;

(e)    that the sectoral employment order shall be binding on all workers and employers in the economic sector concerned.

A recommendation to the Minister under section 16(3) shall specify the class, type or group of workers and the economic sector in relation to which the recommendation shall apply.

Section 16(5) provides that the SEO may provide for a minimum hourly rate of basic pay that is greater than the minimum hourly rate of pay declared by order for the time being in force under the Act of 2000 in respect of the workers, not more than 2 higher hourly rates of basic pay based on length of service in the economic sector concerned, or the attainment of recognised standards or skills, a minimum hourly rates of basic pay for persons who have not attained the age of 18 years or enter employment for the first time after attaining the age of 18 years or having entered into employment before attaining the age of 18 years, continue in employment on attaining that age, minimum hourly rates of basic pay for apprentices, any pay in excess of basic pay in respect of shift work, piece work, overtime, unsocial hours worked, hours worked on a Sunday, or travelling time (when working away from base, a pension scheme, including a minimum daily rate of contribution to the scheme by a worker and an employer or a sick pay scheme of the class, type or group in the economic sector concerned to which the order is to apply.

The order is to further provide for procedures that shall apply in relation to the resolution of a dispute concerning the terms of a sectoral employment order.

Section 19 provides for the Adaptation of contracts of service consequential upon sectoral employment orders. Section 19(1) sets out who the order shall apply to and upon where a sectoral employment order is introduced into an economic sector that contracts shall be amended.

19. (1) A sectoral employment order shall apply, for the purposes of this section, to every worker of the class, type or group in the economic sector to which it is expressed to apply, and his or her employer, notwithstanding that such worker or employer was not a party to a request under section 14, or would not, apart from this subsection, be bound by the order

It’s clear on who the order is applicable to and that is every worker of the class type or group in the economic sector to which it is expressed to apply and his or her employer. Upon the order applying to a worker of the class type or group, his or her contract with the employer must be amended in accordance with subs 19(b)&(c) of the Act, that is to say; (2) If a contract between a worker of a class, type or group to which a sectoral employment order applies and his or her employer provides for the payment of remuneration at a rate (in this subsection referred to as the “contract rate”) less than the rate (in this subsection referred to as the “order rate”) provided by such order and applicable to such worker, the contract shall, in respect of any period during which the order applies, have effect as if the order rate were substituted for the contract rate.

(3) If a contract between a worker of a class, type or group to which a sectoral employment order applies and his or her employer provides for conditions in relation to a pension scheme or a sick pay scheme (in this subsection referred to as the “contract conditions”) less favourable than the conditions (in this subsection referred to as the “order conditions”) fixed by the order and applicable to such worker, the contract shall, in respect of any period during which the order applies, have effect as if the order conditions were substituted for the contract conditions.

The consequences of section 19 are that, if the workers of a particular class type or group are not in receipt of a minimum rate of pay or a pension or sick pay scheme as laid out in the order, the contracts must be amended for the orders conditions and rates of pay as applicable in the order to take effect. Section 20 of the Act refers to the penalisation of a worker under a number of conditions and it specifies protections afforded to workers in respect of an SEO.

Sectoral Employment Order (S.I. 455 of 2017).

We will now turn to the Order as enacted on the 19th October last 2017. The matter came before the Court by way of an application by the Construction Industry Federation (the CIF) under the Industrial Relations (Amendment) Act 2015 (the 2015 Act). The CIF requested the Court to examine the terms and conditions of workers engaged in what it submits is,“a defined economic sector” for the purposes of the 2015 Act[4]

Having heard all the parties wishing to be heard, the Court made a number of recommendations regarding the application. In doing so it defined the, class type and group of workers to whom the order applies; General Operative Grade B to consist of Skilled General Operatives with More than 1 Year’s Experience working in the Sector

General Operative Grade A to consist of the following categories of Skilled General Operatives, Scaffolders who hold an Advanced Scaffolding Card and who have four years’ experience; Banks operative, Steel Fixers; Crane Drivers and Heavy Machine Operators.

Craft Workers in the following trades Bricklayers/Stone Layers; Carpenters and Joiners; Floor Layers; Glaziers; Painters; Plasterers; Stone Cutters; Wood Machinists; Slaters and Tilers; together with a pro rata rate of pay applicable to Apprentices in these trades.

Category 1 Worker                                          €17.04 per hour

Category 2 Worker                                          €18.36 per hour

Craft Worker                                                   €18.93 per hour

Apprentice                                                        Year 1 33.3% of Craft rate

Year 2 50% of Craft Rate

Year 3 75% of Craft Rate

Year 4 90% of Craft Rate

New Entrant Worker                                      €13.77 per hour

The Court then looked at unsocial hours payments and in accordance with the Courts recommendation set out he following that applies in the Construction Sector

Monday to Friday                                                             normal finishing time to midnight time plus a half.

Monday to Friday Midnight                                          to normal starting time double time

Saturday              (1) First four hours from normal starting time                                      time plus a half

                             (2) All subsequent hours till midnight                                                      double time

Sunday all hours worked                                                                                                               double time.

Public Holidays All hours worked double time plus an additional day’s leave.

Normal working time in the Construction sector for the grades of workers as defined in the SEO have been 8.00am to 4.30pm Monday to Thursday and 8.00am to 3.30pm Friday. Anything outside those hours have been considered, unsocial hours.

The Court looked at a Pension and sick pay scheme that would apply to the sector and it outlined the conditions that that a pension scheme and sick pay scheme must adhere to. The pension scheme is to provide no less favourable the terms, including both employer and employee contribution rates, than those set out in the Construction Workers Pension Scheme be included in the Sectoral Employment Order.

Employer €26.63 per week

Employee €17.76

Total Contribution weekly into the scheme per worker €44.39

Death In Service Contribution

               Employer €1.11

Employee €1.11

Total contribution per worker €2.22

The Court then set out the terms and conditions applicable to the Sick pay scheme for the sector.

The Court noted the serious threat to the health and safety of workers, the precarious nature of employment and that a sick pay scheme to finance workers though such periods of injury or illness should be a mandatory requirement on all employers in the sector. The Court recommended that a scheme in line with the Construction Industry Sick Pay scheme, including no less comparable benefits and contributions by both workers and employers, be included in an SEO[5].

It set out he contribution rates for the employer and worker as follows.

Employer €1.27

Employee €0.63

Total €1.90

The Court then recommended a disputes procedure applicable to workers and employers in the sector. The disputes procedure is only concerned with disputes of a nature contained within the SEO for the sector. It provides for both individual and collective disputes and it is applicable to both workers and employers. There are two appendices attached to the SEO outlining the terms and conditions a Pension and Sick pay scheme applicable to the order.

Worker.

The term worker as opposed to employee is used in the legislation which considering the definition as provided for within the industrial Relations Act 1990 Section 23 is wide enough we believe to cover workers engaged on a contract for services. The term worker has been considered on numerous occasions and it has been found by the Superior Courts to be wide enough to cover workers working as self-employed workers or independent contractors. The Labour Court considered the term in its application with Registered Employment Agreements in Patrick McKevitt V BATU REA 0595. The Court noted as part of its decision that the REA was applicable to workers of the class type or group mentioned in the REA. In making its decision it referred to Building and Allied Trades Union & Anor v. Labour Court [2005] IEHC 109 (15 April 2005)[6]

The Court under Judicial Review considered the term worker and referred to section 8 and Section 23 of the Industrial Relations Act 1990. Section 8 defines a worker for the purposes of trade disputes.

The court upon considering section 23 of the Act said the following at para19,”Such workers are not defined as employees. It seems, accordingly, that a 'worker' is wide enough to include an individual sub-contractor. The sub-contracting company, on the other hand would appear to be an employer as defined by s. 8 of the Act. Accordingly, both a worker as an individual sub-contractor or sub-contractor as an employer of workers would appear to be within the ambit of the Registered Employment Agreement of 1967.

Employers are defined as follows;"A person for whom one or more workers work and have worked or normally work or seek to work having previously worked for that person." Appendix 1 of the SEO requires “Every employer to whom the SEO applies shall participate in an SEO pension scheme that meets the pensions requirements of the SEO”. The Order is similar to the Registered Employment Agreement as it has universal application to the class type or group of workers to whom it is to apply within an economic sector. One difference between REA’s as defined in part three of the Industrial Relations Act 1946 and SEO’s is that, the SEO must be laid before the houses of the Oireachtas. The REA’s were never required to come before the Parliament. The SEO has now replaced REA’s in their application in the construction sector.As the provisions of the SEO apply to the claimant as he is a worker to whom the order applies and the respondent, it is necessary for the respondent to treat the claimant as an employee for the purposes of ensuring that the claimant is covered by an occupational pension scheme and sick pay scheme as set out in the SEO. Occupational pension schemes are governed by the Pension Act 1990 (as amended) and the revenue commissioners regulates the tax treatment of pension arrangements in Ireland.

We conclude that in order for the respondent to fully comply with the SEO he must threat the claimant who is of the class, type or group as defined within the order as an employee in order to receive the benefits as laid out within that order. An employer cannot by merely designating his or her workers as self-employed workers evade his or her responsibilities under that order. In the McKevitt case as mention previously the Labour Court concluded the following; Those working for the Respondent provide their services personally. Even if they are engaged on a contract for service, as contended for by the Respondent (and not on a contract of service as claimed by BATU) they are nonetheless workers within the meaning of Industrial Relations Acts 1946 to 2004 and are thus encompassed by the Agreement. It follows that the Respondent, to whom they provide their services,must be regarded as their employer for the purposes of the Agreement and is thus liable to provide the workers with the benefits prescribed by the said Agreement.

Terms of Employment (Information) Act 1994/2015

We allege a breach of the provisions of the S.3-(1) of the Terms of Employment (Information) Act, 1994, wherein it is alleged that the respondent contravened the relevant section in circumstances that he either failed or neglected to provide the claimant with a written statement outlining the main particulars of the terms of his employment, within the time provided for in the Actthat is to say, not later than two months after the commencement of his employment with the respondent, and within which time the statement is required to be given within lawThe purpose of this Act is to provide for the implementation of Directive No. 91/533/EEC of 14 October, 1991 of the Council of the European Communities on an Employer's Obligation to Inform Employees of the Conditions Applicable to the Contract or Employment Relationship, to amend the Minimum Notice and Termsof Employment Act 1973, and to provide for related matters and as such it is a Community Right enjoyed by the claimant, from which there can be no derogation.

Section 3; written statement of terms of employment

 3.—(1) An employer shall, not later than 2 months after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment, continues…………. The Claimant has an entitlement under community law to be provided with a written statement of the main terms of her employment within two months of commencement of the contract of employment. The statement fails to comply with section 3(1) of the Terms of Employment (Information) Act 1994/2015 which must include the following;

Union Arguments

The Claimant has an entitlement under community law to be provided with a written statement of the main terms of her employment within two months of commencement of the contract of employment. The statement fails to comply with section 3 of the said Act which must include the following

a)      the full names of the employer and the employee,

b)      the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act, 1963 ),

c)       the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

d)      the title of the job or nature of the work for which the employee is employed,

e)       the date of commencement of the employee's contract of employment,

f)        in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires,

g)      the rate or method of calculation of the employee's remuneration,

h)      the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

i)        any terms or conditions relating to hours of work (including overtime),

j)        any terms or conditions relating to paid leave (other than paid sick leave),

k)       any terms or conditions relating to—

(i)                  incapacity for work due to sickness or injury and paid sick leave, and

(ii)                pensions and pension schemes,

(l) the period of notice which the employee is required to give and entitled to receive       (whether by or under statute or under the terms of the employee's contract of employment) to determine the employee's contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

m) a reference to any collective agreements which directly affect the terms and conditions of the employee's employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.

Section 3(1) Terms of Employment (Additional Information) Order 1998 (S.I. No 49 of 1998

In relation to an employee who enters into a contract of employment after the commencement of this Order, the employee's employer shall, within two months after the employee's commencement of employment with the employer, give or cause to be given to the employee a statement in writing containing particulars of the times and duration of the rest periods and breaks referred to in sections 11, 12 and 13 of the Act that are being allowed to the employee and of any other terms and conditions relating to those periods and breaks.

1. Any derogation from the prescribed time frame for the production of such statement is a breach of the claimants’ community rights.
2. The compensation payable must reflect the gravity of the infringement and act as a disincentive against future infractions.

Public Holidays & Annual Leave.

Public Holiday

We further seek the commission under the Organisation of Working Time Act 1997, to consider the claimant’s right to be paid for public holidays & given his annual leave entitlements that occurred during the period of employment. In accordance with section 21 of the Act;

21.—(1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely—

(a) a paid day off on that day,

(b) a paid day off within a month of that day,

(c) an additional day of annual leave,

(d) an additional day's pay:

The days relating to Public Holidays are prescribed with schedule two of the Act.

1.       Each of the following days shall, subject to the subsequent provisions of this Schedule, be a public holiday for the purposes of this Act:

(a)    Christmas Day,

(b)    St. Stephen's Day,

(c)     St. Patrick's Day,

(d)     Easter Monday, the first Monday in May, the first Monday in June and the first Monday in August,

(e)    the last Monday in October,

(f)       the 1st day of January,

(g)    any other day or days prescribed for the purposes of this paragraph.

We seek 6 public holidays as highlighted in bold above.

Annual Leave

The Claimant also seeks his entitlements under section 19 of the Act in relation to Annual leave which he would be entitled to as an employee.

Section 19

19.—(1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as

‘‘annual leave’’) equal to—

(a)    4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

(b)    one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c)     8 per cent. of the hours he or she works in a leave year (but subject to a     maximum of 4 working weeks):

We would seek that the full entitlement of annual leave be awarded to the claimant as if designated correctly, would be entitled to the full 20 days annual leave because of his service to the respondent.

Conclusion.

As outlined in our submission, we believe the claimant was and should been designated as an employee for the duration of the employment. The nature and arrangements of the employment should be that of a contract of service as opposed to a contract for services. We would ask for you to find in favour of the claimant in respect of the preliminary issue associated herein.

As such, the claimant is at a loss in respect of Annual leave, Public holidays, a statement of the main terms of his employment and he is further at a loss to the provisions of a sectoral employment order that was enacted on the 19th of October 2017 whereby his contract would have been amended by consequence of section 19 of the Industrial Relations (Amendment) Act 2015.

Chair for the above reasons we would In accordance with S. 7-(2) d of the Act, we would ask you to find the case well founded and order the respondent to pay the claimant an amount of compensation which is just and equitable in all the circumstances, and in this case to award the maximum award of four weeks remuneration, being cognisant of the decision of the ECJ in Von Colson and Kamann [1984] ECR 1891, so that the decision will reflect the gravity of the infringement and act as a real deterrent against future infractions of Community Rights.

Furthermore, in accordance with section 23 (2)(a) of the Industrial Relations (Amendment) Act 2015 declare the complaint well founded that you find that the claimant is a worker to whom the SEO applies. That you require the employer in accordance with Section 23 (2)(b) of the Act, to comply with the provision in respect of which the complaint concerned relates and, for that purpose require the employer to take a specific course of action that being, that the employer pay in full the pension and sick pay entitlements owed in respect of the complainants for the period of employment in question and finally, in accordance with section 27 of the Organisation of Working Time Act 1997 find the case well founded and require the employer to comply with section 19 & 21 of the Act.

The Complainant was engaged in the capacity of sub-contractor to provide plastering services from 18th January to 1st December 2017. He sought work on the site around the 18th and was given a trial as he was not known to the Respondent. When he commenced he was already registered with Revenue for RCT (Relevant Contract Tax) This is a withholding tax that applies to certain payments made by principal contractors to sub-contractors in this industry. The rates are 0% 20% and 35%. He informed the Respondent that he was registered at the rate of 0% for RCT. All payments made by the Respondent to the Complainant were submitted through ROS at the rate of 0%. The Complainant was responsible for the payment of his own tax, PRSI and USC charges. He had told the Respondent that he was set up for tax purposes at 0%. During the period of engagement, the Complainant provided services some weeks on a full-time basis other weeks a number of days and some weeks none. He did not provide any services on week 7th July, 14th July, 4th August, 22nd September 29th September and 24th November 2017. During weeks 20th January 24th March, 21st April 2nd June 16th June 21st July 11th August, 6th October 20th October, 3rd November, 10th November he provided services on a number of days only, it could be 2/3 days a week. He was free to provide the same services to others on dates he was not providing services to the Respondent. Details of payments made were supplied. He was not employed under a contract of employment but rather he provided services to the Respondent as a sub-contractor. It is submitted that these complaints should be dismissed.

I find that there was a conflict of evidence in this case.

I note that in the “Kerry Foods” case the Supreme Court decided that each case must be determined in the light of its own particular facts and circumstances.

I note that there is an amount of case law on this subject that will require attention in order to arrive at a decision on this matter.  

The Code of Practice for Determining Employment or Self-Employment Status of Individuals issued through the Department of Social & Family Affairs helps to form an understanding of this complex matter. It states “The overriding consideration or test will always be whether the person performing the work does so ‘as a person in business on their own account ‘. Is the person a free agent with an economic independence of the person engaging the service? This economic test is paramount”.

I note that Langford in The Classification of Workers: Employees and Independent Contractors “ (1998) 5 (3) CLP 63 states, “The courts have over the years sought to decide the issue by reference to a variety of legal tests, traditionally the control test. More recently, the courts have tended to adopt a practical test such as that of economic reality, or to have regard to all the different features of the work relationship and to engage in a balancing exercise in relation to all the various factors. The modern tendency would seem to be not to regard any one issue as conclusive but to look at the whole picture of the work situation”.

I note that in the case of McAuliffe v Minister for Social Welfare, Barr J. said it was not possible to devise any hard and fast rule as to what constitutes a contract of service.

In Sunday Tribune Ltd [1984] I.R. 505 Carroll J. stated: “The Court must look at the realities of the situation in order to determine whether the relationship of employer and employee in fact exists, and it must do so regardless of how the parties describe themselves”.

I have decided that it is necessary to consider the evidence as presented at the hearing under a series of tests as set out in the varying court cases that have dealt with this type of matter in the past.

1) Contract of Employment

I note that no contract of service or for service was issued.

Therefore, I find that this test is inconclusive.

2) Mutuality of Obligation

In order for a contract of service to exist there must be mutual obligations on the employer to provide work for the employee and on the employee to perform work for the employer. So there is an ongoing duty to provide work and one to accept work.

In the High Court case Minister for Agriculture and Food v Barry & Ors the mutuality test of obligation was endorsed by Edwards J. when he stated ”The requirement of mutuality of obligation is the requirement that there must be mutual obligations on the employer to provide work for the employee and on the employee to perform work for the employer. If such a mutuality is not present, then either there is no contract at all or whatever contract there is must be a contract for services or something else, but not a contract of service”.

I note the conflict of evidence regarding this test.

I note that the Complainant stated that he was instructed continuously by the Respondent. The standards of work was set and the amount of gauges of skimming that had to be done in order to get his wages. In the twelve months of the employment he took instructions at all times. He worked for a predetermined wage each week. He worked set hours, he could not profit from how the work was carried out.

I note that the Respondent asserted that he performed his duties on his own and by his own standards.

On the balance of probability, I find that there was a mutuality of obligation. I find that there was an obligation on the Respondent to provide work and on the Complainant to carry out this work.

Under this test I find that this was an employer /employee relationship.

3) Control

Under this test the following matters needs to be addressed: deciding the thing to be done, way it is to be done, the means to be employed doing it and the time and place.

I note that there was a conflict of evidence regarding this matter.

On the balance of probability, I find that the Respondent set the standards of work, set the amount of gauges of skimming that had to be done in order to get his wages, issued instructions to the Complainant at all times. He worked for a predetermined wage each week. He worked set hours and he could not profit from how the work was carried out.

Under this test I find that there was a control exercised by the Respondent at all times.

Therefore, I find that this was an employer /employee relationship.

4) Integration

I note that there was a conflict of evidence regarding this matter.

On the balance of probability, I find that there was a degree of integration.

However, I find that this test was inconclusive.

5) Taxation / VAT

I note in the Henry Denny & Sons (Ireland) Ltd t/a Kerry Foods v The Minister for Social Welfare Kerry Foods case the demonstrator in question submitted an invoice yet it was deemed that she was an employee. I also note that in the Phelan case a VAT invoice was submitted and it was also decided that he was an employee.

In this case the Complainant was responsible for invoicing for the work done and the payment of tax and social insurance. He was registered as a RCT with Revenue.

Therefore, on the above cases, I find that the submitting of a VAT invoice and the responsibility for her own tax returns does not conclusively prove that the Complainant was self-employed.

Overall, I find that this test was inconclusive.

6) In business on own account

I note the conflict of evidence regarding this matter.

I find that the Complainant worked for a predetermined wage, he worked set hours, he could not profit from a restructure of how the work was done, he was not allowed to replace himself with another person, he never presented to the main contractor as being in business on his own account.

On the balance of probability, I therefore find that he was not in business in his own right.

I find that this was an employer/employee relationship.

Decision

I have reflected on the evidence and on the balance of probability, having looked at the whole picture of the work situation, I have decided that there was a mutuality of obligation and that this was in effect a contract of service and so it was an employer / employee relationship.

Therefore, I have decided that I have jurisdiction to adjudicate on the claims presented to the Commission.

The Complainant stated that he did not get a written statement of his terms and conditions of employment.

The Respondent stated that as he was not an employee he did not have an entitlement to a contract of employment.

Sec 3 (1) of the Terms of Employment (Information) Act states, “ An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment”

I find that the Complainant did not receive a written statement of his terms and conditions of employment.

I find that the Respondent has breached Sec 3 of this Act.

Sec 7 (2) (d) of the Act states,” compensation of such an amount (if any) as is just and equitable having regard to all the circumstances but not exceeding 4 weeks remuneration”.

1)Public Holidays

The Complainant was registered as a RCT with Revenue. He was not an employee and so not entitled to Public Holidays and holidays. He took time off and worked for other builders.

1) Public Holidays

This complaint was presented to the Commission on 16th March 2018. Therefore, the period that may be investigated is 17th September 2017 to the termination date of 1st December 2017.

I find that in that period there was only one qualifying Public Holiday, being October.

I find that he is owed €180.00 in respect of that day.

2) Holidays

I find that he worked from 18th January 2017 to 1st December 2017 a period of 46 weeks. I accept that he may not have worked for a period of 6 weeks. That still left a working year of approx. 1,600 hours and so I find that he is entitled to the full year’s entitlement of 20 days.

However, this Act defines the holiday year as running from 1st April to 31st March in any year, (Sec 2 states, “leave year means a year beginning on any 1st day of April). Therefore, within the qualifying period for investigation, he is entitled to claim holiday entitlement from 1st April to 1st December 2017, a period of 8 months X 1.66 days per calendar month amounting to 13 days X €180 per day = €2,340.

He stated that on 19th October 2017 S.I. 455 of 2017 was passed. This is a Sectoral Employment Order in the Construction Sector. He is seeking that the Complainant is covered by the provisions of this Sectoral Employment Order relating to pay, unsocial hours payments, Sunday working, Public Holiday working, pensions, death in service,

The Respondent stated that the Complainant was a self-employed contractor and this does not apply.

I note that this S.I. came into force with effect from 19th October 2017.

I note that in accordance with Sec 15 (b) of the Industrial Relations (Amendment) Act 2015 this order applies to “all workers” of the particular class, type or group and their ‘employers’ in the economic sector.

I note that in the S.I. it defines Craft workers to include “Plasterers” .

I find that this S.I. applies to the Complainant.

Employer/Employee relationship: contract of employment, Holidays, Public Holidays, application of S.I. 455/2017